Commissioners: Rodrigo Escobar Gil, Felipe Gonzalez, Paulo Sérgio Pinheiro
Participants: Border Action Network, Indigenous Peoples Law and Policy Program of the University of Arizona Law School
Country: United States
Topic: Prosecution of vigilante border control on the Arizona-Mexican border.
In recent years, anti-immigration sentiment in the state of Arizona has led to an increase in legislation, rhetoric, and vigilante border patrol. On October 25, 2011 representatives from the Border Action Network along with the Indigenous Peoples Law and Policy Program of the University of Arizona Law School argued for their petition against the United States before the Inter-American Commission on Human Rights (IACHR). Representatives from the U.S. Departments of Justice and Homeland Security were also in attendance. Petitioners claimed that the U.S. has violated rights to liberty and security of person, equal protection before the law, and access to a judicial remedy by failing to prosecute vigilantes operating along the Arizona-Mexico border. In response, U.S. representatives claimed that while the cited incidents have not resulted in prosecution, there has been sufficient investigation by the State’s Attorney to support decisions not to prosecute.
Petitioners cited a recent wave of legislation in Arizona as the source of an increasingly anti-immigrant climate. This climate has permitted and possibly encouraged the proliferation of citizen vigilantes who patrol borders and detain individuals based on racial profiling and assumptions of immigration status. Petitioners pointed to recent legislation such as Arizona Senate Bill 1070, which criminalizes the failure to carry documentation and allows for the indefinite detention of those suspected of illegal immigration, and 1495, which authorizes a citizen militia for border patrol, as examples of the state sanctioning increasing anti-immigration rhetoric. In addition to state legislative action, Petitioners claimed that some 21 incidents of vigilante violence have gone unprosecuted. Petitioners requested that the U.S. investigate and prosecute each incident, issue a proclamation denouncing vigilante networks, appoint an independent investigator, track vigilante activity, and halt the deportation of victims who come forward with claims of vigilante violence.
The U.S. representatives from the Departments of Justice (DOJ) and Homeland Security (DHS) responded with assurances that allegations of vigilante violence are routinely investigated. They argued that absent evidence of a bad-faith investigation by the government, the State cannot be held accountable for violations of human rights based on the non-prosecution of private actors. While the State did not contest that the incidents petitioners cited had gone unprosecuted, it clarified that this did not mean they had gone uninvestigated. The State emphasized that the incidents have not been ignored but rather that the State’s Attorney has not found sufficient evidence to prosecute. The DOJ noted that it can and does investigate law enforcement agencies where there is evidence of a pattern of human rights violations. The DOJ’s current investigations include claims based in Arizona. The DOJ also noted that it has opposed some of the Arizona legislation and is currently investigating civil rights violations under the legislation. Finally, DHS pointed out that there has been a significant decrease in both illegal border crossings and acts of vigilante violence, claiming there has been “less than a handful per year.”
Commissioner Rodrigo Escobar Gil, the Special Rapporteur on the Rights of Persons Deprived of Liberty, requested that the U.S. outline the concrete measures it has taken to ensure that vigilante violence is punished criminally. The Special Rapporteur on the Rights of Migrant Workers and their Families, Felipe Gonzalez, expressed an interest in additional information regarding the unprosecuted and possibly uninvestigated claims of vigilante violence. Finally, both parties expressed disapproval of the Arizona legislation and the State commented that, absent these measures, there has been an increase in protection of immigrant victims of violence as well as an expansion of protected groups and jurisdiction for racially motivated crimes.